Showtime Entm't LLC v. Ammendolia

• Decision Date: 15 April 2016
• Docket Number: Civil Action No. 10-40194-FDS
• Parties: SHOWTIME ENTERTAINMENT LLC, Plaintiff, v. MIKE AMMENDOLIA, in his official, capacity, LAWNEY TINIO, in his official capacity, and the TOWN OF MENDON, Defendants.
• Court: U.S. District Court — District of Massachusetts

SHOWTIME ENTERTAINMENT LLC, Plaintiff, v. MIKE AMMENDOLIA, in his official,

capacity, LAWNEY TINIO, in his official capacity,

and the TOWN OF MENDON, Defendants.

Civil Action No. 10-40194-FDS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

April 15, 2016

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTIONS FOR ATTORNEYS' FEES AND COSTS

SAYLOR, J.

This action arises from the efforts of plaintiff Showtime Entertainment LLC to open a club in Mendon, Massachusetts, that will feature live nude dancing. In 2010, Showtime brought an action against the Town of Mendon and its representatives challenging the constitutionality of four provisions of the town's bylaws under the First Amendment and Article 16 of the Massachusetts Declaration of Rights. Those four provisions included a special-permit requirement (Counts One and Two), a size restriction (Counts Three and Four), an hours restriction (Counts Five and Six), and an alcohol restriction (Count Seven).¹

In 2012, the Court granted Showtime's motion for summary judgment on Counts One and Two and awarded it $24,404.56 in attorneys' fees pursuant to 42 U.S.C. § 1988. However, it granted defendants' motion for summary judgment on Counts Three through Seven. Showtimethen appealed to the First Circuit. On appeal, the First Circuit reversed and remanded, ordering that summary judgment be granted in favor of Showtime on Counts Three through Six. Showtime moved for an award of attorneys' fees before the First Circuit, but pursuant to First Circuit Local Rule 39.1(b) the panel remitted to this Court Showtime's motion and supplemental motion.

As a prevailing party on Counts Three through Six, Showtime requests a total award of $193,880 in fees for its three attorneys and $1,339.27 in costs.² For the reasons set forth below, the motions will be granted in part and denied in part, and the Court will award Showtime attorneys' fees in the amount of $138,417.71 for 526.6 hours, and costs in the amount requested.

I. Background

The underlying facts of the dispute are familiar to the parties and are detailed in four earlier opinions. First, the Court granted Showtime's motion for summary judgment on Counts One and Two, its First Amendment challenges to Mendon's special-permit requirement for adult-entertainment establishments. See Showtime Entm't LLC v. Ammendolia, 885 F. Supp. 2d 479 (D. Mass. 2012). The Court awarded Showtime $24,404.56 in attorneys' fees as a prevailing party. Second, the Court granted defendants' motion for summary judgment on Counts Three through Seven, Showtime's challenges to Mendon's size, hour, and alcohol restrictions on adult-entertainment establishments. See Showtime Entm't LLC v. Ammendolia, 885 F. Supp. 2d 507 (D. Mass. 2012). Third, in reversing this Court, the First Circuit ordered that summary judgment be entered for Showtime on Counts Three through Six, and it certified two questionsrelating to Count Seven to the Massachusetts Supreme Judicial Court. See Showtime Entm't LLC v. Town of Mendon, 769 F.3d 61 (1st Cir. 2014). Fourth, the SJC answered the certified questions by concluding that while Mendon had established a sufficient countervailing state interest to support its alcohol restriction, it was not narrowly tailored and therefore violated Article 16. See Showtime Entm't LLC v. Town of Mendon, 472 Mass. 102 (2015).

On February 4, 2015, Showtime moved for an award of attorneys' fees and costs that it incurred in litigating and appealing Counts Three through Six. After defendants filed an opposition contesting the requested award, Showtime filed a reply as well as a supplemental motion for fees that it incurred in drafting the reply. On January 20, 2016, the First Circuit remanded the matter to this Court for a reasonable fee determination.

In addition to holding a hearing on the motions, the Court has carefully considered the following filings:

• Showtime's motion for attorneys' fees and costs; its memorandum in support of that motion; affidavits by Showtime's attorneys, Thomas Lesser, Michael Aleo, and Lisa Kent, that detail their qualifications and summarize their hourly billing records; and three supporting affidavits by other Massachusetts attorneys;

• Defendants' opposition to Showtime's motion; an exhibit that details their objections to Showtime's hourly billing records; an affidavit by defendants' attorney; and two affidavits by other Massachusetts attorneys;

• Showtime's reply memorandum to defendants' opposition; two supplemental affidavits by its attorneys; a supplemental motion for attorneys' fees and costs that it incurred in replying to defendants' opposition; and an affidavit by Attorney Lesser that details the hourly records in support of the supplemental motion;• Defendants' opposition to Showtime's supplemental motion;

• Showtime's second supplemental motion for attorneys' fees and costs that it incurred in attending a hearing on its motions; and

• Defendants' opposition to Showtime's second supplemental motion.

II. Standard of Review

In § 1983 cases, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. "Although this fee-shifting provision is couched in permissive terminology, awards in favor of prevailing civil rights plaintiffs are virtually obligatory." Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 2001).

Here, there is no dispute that Showtime is a prevailing party on Counts Three through Six. Accordingly, the sole issue is what amount of attorneys' fees and costs is reasonable for litigating and appealing those claims. Under the § 1988 fee-shifting provision, a district court has "broad" discretion to determine what reasonable fees and costs should be awarded. United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir. 1988). The prevailing party has the burden of substantiating the requested fees and costs with detailed billing records and hourly rates. Spooner v. EEN, Inc., 644 F.3d 62, 68 (1st Cir. 2011). A district court need not accept the hours and rates offered by the prevailing party. Indeed, the attorneys' records should be "scrutinized with care." Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984).

III. Analysis

In the First Circuit, courts follow the so-called "lodestar" method for calculating reasonable attorneys' fees. Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994); see also Spooner, 644 F.3d at 67-69. The lodestar method involves "multiplyingthe number of hours productively spent by a reasonable hourly rate to calculate a base figure." Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

In fashioning the lodestar, the first step is to calculate the number of hours reasonably expended by the attorneys for the prevailing party, excluding those hours that are "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434; see also Grendel's Den, 749 F.2d at 950 (explaining that a court should subtract "hours which [are] duplicative, unproductive, excessive, or otherwise unnecessary"). "The court has a right—indeed, a duty— to see whether counsel substantially exceeded the bounds of reasonable effort." Metropolitan Dist. Comm'n, 847 F.2d at 17 (internal quotation omitted); see also Dixon v. International Bhd. of Police Officers, 434 F. Supp. 2d 73, 81-82 (D. Mass. 2006) (reducing an award in part because an average of 32.8 hours drafting a summary judgment motion was excessive). Further, a court may disallow or discount requests where the records are "too generic and, thus, insufficient as a practical matter to permit a court to answer questions about excessiveness, redundancy, and the like." Torres-Rivera, 524 F.3d at 336.

After determining the number of hours reasonably expended, a court's second step in calculating the lodestar requires a determination of a reasonable hourly rate—a determination that is benchmarked to the "prevailing rates in the community" for lawyers of like "qualifications, experience, and specialized competence." See Gay Officers Action League, 247 F.3d at 295. In determining a reasonable hourly rate, a court must consider "the type of work performed, who performed it, the expertise that it required, and when it was undertaken." Grendel's Den, 749 F.2d at 950-51 (declining to define the "relevant community" for the hourly rate of a well-known Harvard Law School professor as one "embracing a small group ofnationally prominent constitutional law scholars" and instead "confin[ing] [the] evaluation to the Boston market"). It is well-established that the moving party bears the burden of establishing an attorney's level of skill and experience, and when a party fails to provide documentation as to the attorney's qualifications, a court may reduce the hourly rate. See, e.g., Martinez v. Hodgson, 265 F. Supp. 2d 135, 142 (D. Mass. 2003).

After determining the reasonable number of hours and hourly rate, the court may adjust the lodestar upward or downward based on a number of factors. Spooner, 644 F.3d at 68. Those factors include (1) "a plaintiff's success claim by claim"; (2) "the relief actually achieved"; and (3) "the societal importance of the right which has been vindicated." Coutin v. Young & Rubicam P.R., 124 F.3d 331, 338 (1st Cir. 1997).

"A request for attorney[s'] fees should not result in a second major litigation." Hensley, 461 U.S. at 437 (noting that "[i]deally, of course, litigants will settle the amount of a fee"). Unfortunately, that appears to be what has transpired, at least in part, in this case. In response to Showtime's lengthy motion for attorneys' fees, defendants filed an equally-lengthy opposition, including eighteen distinct categories of objections. In further response, Showtime filed a reply brief as well as two supplemental motions for attorneys' fees that it incurred in responding to defendants' opposition.

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